JR v Merton London Borough
| Jurisdiction | England & Wales |
| Judgment Date | 1992 |
| Date | 1992 |
| Year | 1992 |
| Court | Court of Appeal (Civil Division) |
SIR GERVASE SHELDON SITTING AS A JUDGE OF THE HIGH COURT
COURT OF APPEAL
11 MAY 1992
LORD DONALDSON OF LYMINGTON, MR, BALCOMBE AND MANN, L JJ
Child cases – allocation of proceedings – case appropriate for High Court.
Children – in care of local authority – foster mother seeking leave to apply for residence order – factors to be taken into account.
Residence order – application for leave to apply for order – factors to be taken into account.
Six children, half-brothers and sisters now aged from 17 to 9, were in the care of the local authority. The four younger children were placed with the foster mother in June 1989 on a long-term fostering basis with a view to adoption. In August 1989 the two eldest children were also placed with the foster mother. All the children were at that time highly disturbed. Initially the children made good progress with the foster mother and in May 1990 the proposal for the adoption by her of the four younger children was confirmed. The placement of the two eldest children was not successful. The placement of the eldest child ended in November 1990 and that of the next eldest in May 1991. By April 1991 the relationship between, on the one hand, the foster mother and her household and, on the other hand, the local authority had deteriorated. The local authority expressed concern about various matters including the fact that the foster mother's household was a tight closed unit which it was difficult to penetrate and would not accept criticism, and that the views of the children could not be obtained because of pressure from the foster mother's "family". The local authority's concerns were fuelled by allegations made by the two eldest children. In June 1991 the four younger children were removed from the foster mother's care. The foster mother wished to apply for the restoration of the four younger children to her care. This she could do if she were able to apply for a residence order under s 8 of the Children Act 1989. By virtue of the terms of s 9(3) and s 10(1),
(2) and (5) of the 1989 Act, she was not entitled to apply for a residence order as of right nor, as a one-time foster parent, could she seek leave to apply for it at least six months from 19 June 1991, the date the children left her home. She therefore sought judicial review of the decision of the local authority that she should no longer foster the children. By the time of the commencement of the hearing on 11 December 1991, only eight days remained before the foster mother would be entitled to, and would, seek leave to apply for a residence order. As a result, it was agreed that the hearing should be treated as the hearing of an application for leave to apply for a residence order.
By s 10(9) of the 1989 Act it is provided:
"Where, the person applying for leave to make an application for a section 8 order is not the child concerned, the court shall, in deciding whether or not to grant leave, have particular regard to –
(a) the nature of the proposed application for a section 8 order;
(b) the applicant's connexion with the child;
(c) any risk there might be of that proposed application disrupting the child's life to such an extent that he would be harmed by it; and
(d) where the child is being looked after by a local authority –
(i) the authority's plans for the child's future; and
(ii) the wishes and feelings of the child's parents."
By r 4.3(2) of the Family Proceedings Rules 1991 it is provided:
"On considering a request for leave filed under para.(1), the court shall –
(a) grant the request, whereupon the proper officer shall inform the person making the request of the decision, or
(b) direct that a date be fixed for the hearing of the request, whereupon the proper officer shall fix such date and give such notice as the court directs to the person making the request and to such other persons as the court requires to be notified, of the date so fixed."
The mother of the children knew of the foster mother's application for judicial review. She was told (correctly) that she was not directly involved with those proceedings. The Judge did not direct that she be given notice under r 4.3(2)(b). She was not told of the foster mother's application for leave to apply for a residence order and knew nothing about it until after the application for leave had been heard.
The Judge held:
(i) that on an application for leave to apply for a section 8 order, s 1(1) of the 1989 Act applied and the child's welfare was the court's paramount consideration;
(ii) that the matters to be taken into account were those set out in s 10(9) of the Act;
(iii) that the court should not attempt to decide the very point which, if leave were granted, would later fail to be decided on the substantive application but that the court should first decide whether, on the undisputed and incontrovertible facts, there appeared to be a question deserving fuller investigation and whether it might be held on the substantive
hearing that it would be in the interests of the child for a section 8 order to be made, citing F v S (Adoption: Ward) [1973] Fam 203 and Winch v Jones [1986] QB 296;
(iv) that the facts and circumstances of the foster mother's application raised a question deserving fuller investigation, and that if the investigation were to favour her it might reasonably be held on the substantive hearing that it would be in the interests of the children, or one or more of them, for a residence order to be made;
(v) that the foster mother was entitled to be granted leave unless it was clear that the further proceedings such leave would entail would not be in the children's best interests;
(vi) that, in that context, regard must be had to the disturbing effect on the children of further investigation, the consequential discharge of the existing care order if a residence order was made (per s 91(1) of the Act), the shared parental responsibility of the foster mother and the mother if a residence order was made (per s 2(6) and 12(2) of the Act), and the tinge likely to elapse before any substantive order could be made;
(vii) that these matters were not insurmountable if a residence order was made, nor did they outweigh the possible value to the children of a thorough investigation of the case;
(viii) that the foster mother would be granted leave to apply for a residence order.
As a result of this decision, the Judge farther held:
In this case, the appropriate forum was the High Court. However, the court which made the existing care orders in respect of the four children was a magistrates' court. The application for leave to apply for a residence order was properly brought in the High Court under its inherent jurisdiction. But Article 4(1)(b) of the Children (Allocation of Proceedings) Order 1991 provided that proceedings which might have the effect of discharging an order should be made to the court which made the order. Therefore, the application for a residence order must be made to the magistrates' court. That court should transfer the case to the appropriate county court and, as the case was appropriate for determination in the High Court, the district judge should transfer the case to the High Court pursuant to Article 12 of the 1991 Order. The procedure was simple, speedy and relatively informal and should be completed within a day.
The application was duly made and transferred as indicated by the Judge, and the case was brought up into the High Court without delay. This part of the Judge's decision did not fall to be considered by the Court of Appeal.
The local authority appealed from the order granting leave to the foster mother to apply for residence orders.
Further evidence in the form of a report from the Official Solicitor, and statements from the mother and the current foster mother of one of the children, was admitted.
Held – allowing the appeal: (1) The Judge was wrong in holding that, on an application for leave to apply under the Children Act 1989 for a section 8 order by a person other than the child, the child's welfare was the paramount consideration. On such an application the court was not determining a question with respect to the upbringing of the child concerned; that question only arose when the court heard the substantive application: F v S (Adoption:: Ward) [1973] Fam 203. Further, s 10(9) required the court to have particular regard to certain matters which would be otiose if the whole application was subject to the overriding provisions of s 1(1). The Judge had applied the wrong test. This could have materially affected his decision since he might well have considered that the children's welfare overrode the mother's wishes and feelings, a matter to which he should have had particular regard under s 10(9)(d)(ii).
(2) The exercise of the Judge's discretion was also vitiated by his failure to direct that the mother be given notice under r 4.3(2)(b) of the 1991 Rules. He was thereby deprived of material necessary for the proper exercise of his discretion. Although it was not mandatory for the Judge to direct that the mother be given notice, he knew in general terms that she had maintained an active interest in the children and that she was unhappy about their placement with the foster mother. In fairness to the mother he should have directed that she be given notice. Had he done so, he would have learned, as the court had done from the mother's statement, of her allegations that the foster mother had refused her access to the children and had physically and emotionally abused them. If those matters were correct, then the mother's wishes and feelings were not lightly to be ignored.
(3) Under the law prior to the implementation of the Children Act 1989 it had been held that the court should approach the exercise of its discretion where a child was in the care of a local authority on the basis that, as Parliament had entrusted the care of the child to the local authority, the court should not...
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